In this episode, Jay and Luke take a step back before diving into the jury amendments. We have a look at how the jury amendments turn from building institutions and rights around confidence in neighbors to protect one another from injustice, and towards enforcing those rights with neighborliness as a remedy.
In short: the Bill of Rights has already laid out several lines that the government isn’t supposed to cross. The juries and procedural checks of the next four amendments can enforce those lines. We also have a look at the origins of the jury in the English common law, both as a matter of historical fact and as the Framers understood it. We see how they drew institutions and processes from the English Bill of Rights, common law, civil law, prerogative, and aristocratic right in order to construct a liberty-protecting system of republican government anchored in their understanding of both the Zenger case and the Boston Massacre trials.
Finally, Jay and Luke talk about how to understand the structure of the four jury amendments as effectively following the course of a legal case, moving from indictment through criminal trial, civil trial, and finally to the remedy phase. Yet at each step, we scale down in terms of the severity of the issues at hand, beginning with restrictions on prosecutions and ending with restrictions on punishments.